Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 1628

Administrative Motion to File Under Seal filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # 1 Samsung's Objections and Responses Regarding Exhibits to Be Used With Boris Teksler, # 2 Declaration of Diane Hutnyan)(Maroulis, Victoria) (Filed on 8/8/2012)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Cal. Bar No. 170151)
 [e-mail]
50 California Street, 22nd Floor
 San Francisco, California 94111
Telephone: [phone]
 Facsimile: [phone]
 Kevin P.B. Johnson (Cal. Bar No. 177129)
[e-mail]
 Victoria F. Maroulis (Cal. Bar No. 202603)
[e-mail]
th
 555 Twin Dolphin Drive 5 Floor
Redwood Shores, California 94065
 Telephone: [phone]
Facsimile: [phone]

Michael T. Zeller (Cal. Bar No. 196417)
 [e-mail]
865 S. Figueroa St., 10th Floor
 Los Angeles, California 90017
Telephone: [phone]
 Facsimile: [phone]
 Attorneys for SAMSUNG ELECTRONICS
CO., LTD., SAMSUNG ELECTRONICS
 AMERICA, INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC



UNITED STATES DISTRICT COURT



NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

 APPLE INC., a California corporation,



CASE NO. 11-cv-01846-LHK

Plaintiff,
vs.

 SAMSUNG ELECTRONICS CO., LTD., a
Korean business entity; SAMSUNG
 ELECTRONICS AMERICA, INC., a New
York corporation; SAMSUNG
 TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,

Defendants.


SAMSUNG’S OBJECTIONS AND
RESPONSES REGARDING EXHIBITS
TO BE USED WITH BORIS TEKSLER




02198.51855/4899090.1

Case No. 11-cv-01846-LHK
OBJECTIONS AND RESPONSES RE: EXHIBITS TO BE USED WITH BORIS TEKSLER

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Samsung hereby submits objections to Apple's direct examination exhibits for Boris

2 Teksler and responses to Apple's objections regarding cross examination exhibits for Mr. Teksler.
3 I.

BORIS TEKSLER

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A.

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Samsung's Objections to Direct Examination Topics and Exhibits
1.

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Samsung's Objection to Testimony About the August 4, 2010 Meeting
Between Apple and Samsung

Apple proffers Mr. Teksler to testify regarding the August 4, 2010 meeting in order to

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provide alleged evidence of ―the beginning of the Apple-Samsung dispute, including when

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Samsung was given notice of Apple‘s patents and trade dress.‖ However, Mr. Teksler testified

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repeatedly in deposition that he was not | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |

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dated March 16, 2012 at 13:2-10 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |

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he should not be allowed to testify to the jury about either what was said or shown to Samsung at

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this meeting.

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See, e.g., Hutnyan Decl., Ex. A (Teksler Depo., dated March 16, 2012 at

Because he was not | | | | | | | | | | | | |

Mr. Teskler testified that

Hutnyan Decl., Ex. A (Teksler Depo.,

Under FRE 602 and FRE 802,

While Mr. Teksler previously testified regarding | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |

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| | | | when he was designated as Apple‘s 30(b)(6) deponent, Apple‘s designation of Mr. Teksler

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as a 30(b)(6) deponent does not allow him to testify regarding events of which he has no personal

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knowledge. Samsung, as the adverse party, may offer Mr. Tekler's testimony in his capacity as a

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02198.51855/4899090.1

Case No. 11-cv-01846-LHK
-1OBJECTIONS AND RESPONSES RE: EXHIBITS TO BE USED WITH BORIS TEKSLER

1 corporate designee, but Apple cannot.

Union Pump Co. v. Centrifugal Technology, Inc., 404 F.

2 App‘x 899, 907-908 (5th Cir. 2010). As the Fifth Circuit explained in Union Pump:
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[FRE 602] limits the scope of a witness's testimony to matters that are within his or
her personal knowledge. Union Pump argues that Bixler was permitted to testify to
matters that, although they were not within his own personal knowledge, were
within the knowledge of the corporation because Bixler was designated as Union
Pump's corporate representative. We disagree. [FRCP] 30(b)(6) allows corporate
representatives to testify to matters within the corporation's knowledge during
deposition, and Rule 32(a)(3) permits an adverse party to use that deposition
testimony during trial. . . .. However, a corporate representative may not testify to
matters outside his own personal knowledge ―to the extent that information [ is]
hearsay not falling within one of the authorized exceptions.‖
Id. (citations omitted) (emphasis in original);

WL 3522954 *7 (S.D. Ind.) ("hearsay is not admissible at trial just because it was provided by a
witness speaking for the company at a Rule 30(b)(6) deposition") (emphasis in original).

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see also Cincinnati Insurance Co. v. Gray, 2010

2.

Samsung's Objection to PX-52

PX-52 is the PowerPoint presentation that Apple prepared for the August 4 meeting. Mr.
Teksler has no personal knowledge relating the only non-hearsay purpose for which PX-52 is
proffered—Samsung‘s notice of Apple‘s infringement allegations.

Indeed, Mr. Teksler has no

personal knowledge of what slides were, or were not, shown at the meeting or what was said in
connection with whichever slides were shown.

Without admissible testimony establishing that

each slide was shown to Samsung – testimony Mr. Teksler cannot give -- Apple cannot establish
that the presentation put Samsung on notice of the alleged infringement. Because notice is the
only possible nonhearsay purpose for PX-52, it is inadmissible hearsay under FRE 802. Mr.
Teksler should also be prohibited from testifying about the presentation PX-52 by FRE 602.
B.

Samsung's Responses to Cross Examination Exhibits

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While seeking to introduce PX-52, a pre-litigation Apple presentation bearing a legend
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stating that it is protected under FRE 408, Apple seeks to exclude PX-51, its own exhibit and
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another of its own pre-litigation presentations. There is no basis for introducing one of these
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presentations to support Apple's affirmative case, while excluding the other, which Apple has
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suddenly decided is unfavorable.
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02198.51855/4899090.1

Case No. 11-cv-01846-LHK
-2OBJECTIONS AND RESPONSES RE: EXHIBITS TO BE USED WITH BORIS TEKSLER

1

Apple objects to this exhibit pursuant to FRE 408, which prohibits the introduction of

2 evidence for the purpose of proving or disproving the amount of a ―disputed claim.‖ Apple‘s
3 objection fails for two reasons.
4

First, there was no litigation then and thus no disputed claim.

See, e.g., SanDisk Corp. v.

5 STMicroelectronics, Inc., 480 F.3d 1372, 1375 n.1 (holding that the patentee‘s ―presentation was
6 made outside the context of litigation, and there is nothing on the record to indicate that it could be
7 properly considered an ‗offer‘ to settle a claim which was then in dispute‖); Ecrix Corp. v.
8 Exabyte Corp., 191 F.R.D. 611, 615 (D. Colo. 2000) (noting that ―evidence of negotiations
9 entered into before a patent infringement claim was filed was admissible but evidence of
10 negotiations after the claim was filed was inadmissible‖).

Indeed, in opposing Samsung‘s motion

11 regarding spoliation, Apple asserts that only after Spring 2011 could it anticipate that there would
12 be litigation between the parties.
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Dkt. 1591 at 9-10.

Apple‘s objection should also be overruled because under FRE 408 evidence regarding

14 offers or conduct during compromise negotiation of a disputed claim can be admitted purposes
15 other than proving the validity or amount of the claim. Samsung will introduce PX-51 to refute
16 Apple‘s contention that it gave Samsung notice of Apple‘s design patents.
17 recognized exception to FRE 408.

This is a well-

FRE 408, Advisory Notes (―The amendment does not affect

18 the case law providing that Rule 408 is inapplicable when evidence of the compromise is offered
19 to prove notice.‖) Accordingly, at a minimum, PX-51 is admissible for this purpose. Apple‘s
20 objection to PX-51 pursuant to FRE 403 should likewise be rejected. As FRE 408 specifically
21 permits the introduction of settlement negotiations for purposes other than those excluded by the
22 rule, the mere fact that the exhibit includes information about settlement discussions is not
23 grounds for exclusion.
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Case No. 11-cv-01846-LHK
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DATED: August 8, 2012

QUINN EMANUEL URQUHART &
SULLIVAN, LLP
By /s/ Victoria F. Maroulis
Victoria F. Maroulis
Attorneys for SAMSUNG ELECTRONICS
CO., LTD., SAMSUNG ELECTRONICS
AMERICA, INC., and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC

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Case No. 11-cv-01846-LHK
-4OBJECTIONS AND RESPONSES RE: EXHIBITS TO BE USED WITH BORIS TEKSLER